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Home EJIL Analysis Kosovo’s Membership in the PCA: Some comments on Professor Zimmermann’s post

Kosovo’s Membership in the PCA: Some comments on Professor Zimmermann’s post

Published on April 13, 2016        Author: 

It was nice to read Professor Zimmermann’s post on the issue of membership of Palestine and Kosovo in the Permanent Court of Arbitration (PCA), as this matter should get more attention from the community of international lawyers. I have already dealt with some of the relevant legal issues in an ESIL Reflection of 11 March 2016 which Professor Milanović has kindly referred to in a comment to Professor Zimmermann’s post. I would like to use this opportunity to engage with some issues raised by Professor Zimmermann, namely: whether the Netherlands should have raised proprio motu the issue of Kosovo’s accession to the 1907 Convention; whether there has been an ‘entente ulterieure’ among the member States of the PCA; what are the powers of the PCA Administrative Council and what is the value of its decision of 4 January 2016, and; what is the way forward concerning Kosovo’s accession to the 1907 Convention.

Calling a meeting of the PCA Administrative Council proprio motu

There was no need for the Netherlands as State depositary to raise proprio motu the matter of Kosovo’s accession to the 1907 Convention within the framework of the PCA Administrative Council. Any State who had an issue with Kosovo’s accession could have called for a meeting of the Administrative Council, even at short notice, like Serbia did, albeit not being a party to the 1907 Convention. Also, it must be noted that by the time of the 4 January 2016 meeting of the PCA Administrative Council, only three out of the 116 Member States of the PCA, namely Russia, Serbia and Mexico seemed to have raised an issue concerning Kosovo’s membership in the PCA. Finally, given that more than half of the member States of the PCA recognize Kosovo as an independent State, there was no need for the Netherlands to raise this issue proprio motu.

Entente ultérieure among PCA member States

Contrary to what Professor Zimmermann claims, there has been no ‘entente ultérieure’ along the lines of Article 60 of the 1899 Convention and Article 94 of the 1907 Convention. The December 1959 agreement among the PCA member States simply authorized the Government of the Netherlands, as State depositary, to send an invitation to new members of the United Nations which were not yet a party to the PCA or whose membership position was unclear. The aim was to increase the membership of the PCA. The document to which Professor Zimmermann refers to as ‘UN support’ is a Study prepared by the Secretariat in 1968 concerning the succession of States to multilateral treaties. The main point of this Study is that given most of the new UN member States were former dependent territories, ‘the Administrative Council’s decision made it possible […] to become parties to the Conventions by succession. They need only send the Netherlands Government a simple declaration of continuity’ (see United Nations, Codification Division of the Office of Legal Affairs of the United Nations Secretariat, The Succession of States to multilateral treaties – Studies prepared by the Secretariat, UN Doc. A/CN.4/200 & Corr.1 and Add.1 & 2, para. 121, p. 30- 31). The US proposal during a meeting of the PCA’s Administrative Council of 27 April 1961 to introduce the system underlying the ‘Vienna Formula’ into the practice under the 1907 Convention, was not withdrawn because it failed to gather sufficient support, but because the USSR’s counter-proposal wanted to open the PCA to all States of the world. This last proposal would have created many practical and other difficulties at a time when the political tension between the Eastern bloc and the Western bloc was quite high. Professor Zimmermann rightly points out that the overall object and purpose of the 1960 ad hoc agreement of the PCA member States has been to accept additional contracting parties provided they were perceived by the international community at large as States. At the same time, requiring formal membership within the United Nations would subject the accession of additional States to the 1907 Convention (via the requirement of admission to the United Nations as such) to the veto of the five permanent members of the Security Council, something which is hardly reconcilable with the object and purpose of the PCA system. UN practice shows that there is sufficient support for membership in international treaties by States which are not members of the UN (see the Treaty Handbook of 2012 and the Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties of 1999). While more clarity concerning the PCA membership criteria might be desirable, and the member States of the PCA can decide to address this issue in the future, any new rules adopted cannot be applied retroactively to States that acting in good faith have already accepted their obligations under the 1907 Convention, like Kosovo.

The competences of the PCA Administrative Council and its decision of 4 January 2016 meeting

Article 28 of the 1899 Convention and Article 49 of the 1907 Convention which lay down the competences of the PCA Administrative Council emphasize that this body ‘will decide all questions of administration which may arise with regard to the operations of the Court.’ As shown by the travaux préparatoires concerning Article 28 of the 1899 Convention which is similar to Article 49 of the 1907 Convention, the word ‘administration’ was inserted in this Article to limit the competences of the Administrative Council to those of an administrative nature. In the absence of an explicit legal basis under the 1907 Convention or its internal Rules of Procedure, the Administrative Council cannot suspend or remove from the list of PCA member States those States which have duly notified the State depositary of their intention to join the PCA, like Kosovo. Suspending or removing a State from membership of the PCA is not a question of administration, but one which has a clear legal and political nature.

The way forward concerning Kosovo’s accession to the 1907 Convention

Interestingly, until the recent cases of Palestine and Kosovo, there have been no cases where a State member to the 1899 or the 1907 Convention has objected to another State becoming a party to either of these conventions (with the exception of the controversy surrounding the efforts of the Democratic Republic of Germany to join the PCA in the late 1950s – early 1960s). Such objections, aimed at excluding a State from benefiting from common public goods as international adjudication, seem misplaced for a number of reasons. First, the possibility of making such objections is not explicitly included in the 1899 and 1907 Conventions. Second, this international arbitration mechanism is not vested with compulsory jurisdiction, but simply offers a good venue for States to settle their disputes peacefully. And third, any State remains free to decide whether it wants to be bound by a treaty in relation to another State. Serbia’s objection to Kosovo’s accession to the 1907 Convention is somewhat puzzling given the ongoing process of normalization of relations between Serbia and Kosovo under the mediation of the European Union.

In a manner similar to what the PCA Administrative Council did in the meeting of 14 March 2016 concerning Palestine, it should simply take note that Kosovo is a member State of the PCA. This formal decision by the PCA Administrative Council opens the way for Kosovo to be listed among the PCA member States as its 119th member.

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One Response

  1. Andreas Zimmermann Andreas Zimmermann

    Kosovo’s Membership in the PCA: a reply

    It is appreciated that Gentian Zyberi engaged with my piece on the accession of both, Palestine and Kosovo, to the 1907 Hague Convention. In this short comment I will simply highlight some of the issues raised as they should, in my view, be properly understood.

    The first issue relates to the duty (or not) of the Netherlands, as depositary, to bring the issue of Kosovo’s accession to the attention of the PCA’s Administrative Council. Such obligation arises, as I had mentioned, under Art. 97 VCLT, which provision my colleague has chosen not to address. At the same time, the limited number of objections to Kosovo’s accession to which my colleague instead refers is irrelevant. This is due to the fact that, as the United States (which obviously has recognized Kosovo as a State) seems to have argued, even a single objection prevents an ‘entente ultérieure’ to emerge, necessary under Art. 94 of the 1907 Hague Convention for a ‘power’ to be able to join the treaty.

    The second issue relates to the notion of ‘entente ultérieure’ among PCA member States in order to enable an entity to become a party of the 1907 Hague Convention. As my colleague himself states «[t]he December 1959 agreement among the PCA member States (…) authorized the Government of the Netherlands, as State depositary, to send an invitation to new members of the United Nations which were not yet a party to the PCA (…)”. What else than an ‘entente ultérieure’ within the meaning of Art. 94 of the 1907 Hague Convention is this ‘agreement’ then? At the same time, it is beyond doubt that the PCA Administrative Council did not accept the Vienna formula as a working premise. Hence, the mere membership in one or more of the specialized agencies (and even more in those agencies, such as the IMF or the World Bank, where voting on the accession of an entity is not representative of the majority of contracting parties) does not suffice to enable such an entity to join the 1907 Hague Convention. On the other hand, as confirmed by the PCA’s Administrative Council’s decision of March 14, 2016 relating to Palestine, the status as an observer state within the United Nations General Assembly may very well serve as proof of a generalized acceptance of an entity as a State by the organized international community. On the whole, it is thus not a matter, as claimed, of retroactively applying new rules vis-à-vis Kosovo, but rather to simply apply the consensus (i.e. the ‘entente ulterieure’ referred to in Art. 94 of the 1907 Hague Convention), as it had emerged in 1959/1961 in light of the modern practice of the organs of the United Nations, and namely that of the General Assembly.

    The last issue relates to the powers of the PCA Administrative Council. I take issue with the interpretation of Art. 49 of the 1907 Hague Convention, as put forward by my colleague. For one, as previously mentioned, one has to interpret Art. 49 in light of Art. 97 VCLT, which obliges the depositary to proprio motu raise pertinent issues of treaty membership within the framework of the PCA Administrative Council. Besides, as confirmed by the ICJ in both Certain Expenses and in Namibia, each organ of an international organization (such as in the case at hand the Administrative Council of the PCA) must, in the first place determine its own jurisdiction (cf. ICJ, Certain Expenses, ICJ 1962, p. 168). Besides, one has to presume that a resolution of a properly constituted organ of an international organization, which is passed in accordance with that organ’s rules of procedure, and is declared by its President to have been so passed, must be presumed to have been validly adopted (cf. ICJ, Namibia, ICJ Rep. 1971, p. 22, para. 20).

    Finally, and to state the obvious, regardless of the object and purpose of the treaty, the accession by an entity to the 1907 Hague Convention, the statehood of which entity is contested, is status-related. This is indeed confirmed by the controversy concerning the accession of the then German Democratic Republic (GDR) (referred to by my colleague as Democratic Republic of Germany), which just like Kosovo today, was then not (yet) recognized as a State by large parts of the international community, including by the Federal Republic of Germany. Accordingly, in such situations objections to purported accessions do not aim, as claimed, “at excluding a State from benefiting from common public goods as international adjudication”, but rather to prevent an entity, alleging to be a State, but not generally recognized as such by the organized international community, from claiming statehood at the first place.

    On the whole, at this stage, it seems that the members of the PCA have so far merely reconfirmed their previous 1961 consensus (or ‘entente ultérieure’ within the meaning of Art. 94 of the 1907 Hague Convention), that members of the United Nations (as of today broadly understood as encompassing entities that have been granted the status of an observer state by the General Assembly) may without further requirements become contracting parties of the 1907 Hague Convention, while the accession of other entities continues to require an ad hoc ‘entente ultérieure’ among the overall membership.

    Andreas Zimmermann